The adversarial system of litigation practiced in USA has its merits but is sorely misplaced in Family law. It resembles a form of gladiatorial combat, both sides attempting to win at all costs. The court system, its strange rites, its legal language, its necessity to suppress client utterances of frustration make matters worse.
The arcane system has strong roots, and its marketing branches the trial divorce attorneys are the first port of call for most unhappily married clients. Its the easiest choice, the path of least resistance, because no one is there to take the couple out of the largest circus in town. The tramlines leads them straight to an attorney, who with some sprinkling of glitter, leads them on to the Courthouse. As of late however, other options, notably mediation (but also arbitration & collaboration), have emerged under the generic term Alternative Dispute Resolution. We discuss all of these ‘Processes’ later
Easiest isn’t best. And ‘easy in’, leaves ‘impossible out’. Each situation is unique, and too complex for the Court to standardize or even have time or desire to understand.
The system evolved out of general litigation. No one stopped to think that Family Dispute was different. Moreover, at the (historical) time, society was against the idea of divorce. Other aspects, such as post marriage contracts or even pre nuptial agreements, were considered against the fabric of society and void. Clearly a lot has changed since then,and pre nups are now valid, but this is tinkering around the edges. At its core, the process still does not busy itself with the litigants’ wellbeing.
The Law itself gives considerable discretion to the Judge, and so the process depends upon some subjectivity. There’s enough wiggle room for both attorneys to believe their client may win. Therefore, most Legal firms advocate your legal rights vehemently, both believing they can win with cogent argument. Of course they cant both be right! The reality is neither will win completely.
Even the court timetable plays a decisive role. Too many cases to be heard ensures a stretched out timetable, where all the parties can only co-ordinate their calendars once every few weeks, sometimes later overridden by other emergency commitments. In court, parties find they are among five motions to be heard in a 30 minute time slot, with a Judge who must remember all details of the case. Thus infuriatingly, practical issues may account for the interminable stop start process. A decision on a minor issue will seem unfair, or worse still a postponement leaving two months of your life wasted on …nothing.
The Process is as important as the Law, and they both bite. Think of chess. There are rules that allow moves. There are also the strategies and styles employed, even down to time-wasting. Finally there is the psychological balance of the parties. We haven’t even mentioned unrecoverable costs. Frankly, it isn’t supposed to be this way.
Court creates huge pressure on clients appearing in front of a judge, drafting statements, compiling evidence. At the end of the Court action, people are left mentally weakened with little life, Ironically, the couple can anticipate more strife and a return to Court over the next few years.
People sometimes feel driven to fight because they think they can win Big, annihilate the opponent, perhaps driven by justice, grievance, distrust or even understandable emotion, left unchecked by their legal advisers. So here’s an important free tip from an attorney. It’s rarely possible to destroy the opponent in family court anyway. And here’s another: one is unlikely to find happiness at the end of it.